Staff reviewed the Committee's actions on Rule 41 at the September 2008 meeting. Staff
explained that some comments and criticisms had been made about the amendments to Rule
41 that the Committee might wish to discuss.

The Chair pointed out that there were inconsistencies between N.D.R.Ct. 3.4's redaction
requirements and the provision in Rule 41 restricting release of personal information. The
Chair said the Rule 41 restriction may be too broad.

Staff gave as an example that Rule 3.4 requires redaction of street addresses of individuals
involved in criminal cases while Rule 41 restricts release of all address information for these
persons.

A member observed that address information for anyone could generally be obtained
through web searching, which indicates that address information is personal information but
not necessarily private information.

Judge Kleven MOVED to replace "home" with "street" on page 33, line 158. Judge Nelson
seconded.

A member indicated that the proposed change probably would not satisfy background
search companies, who want access to the complete street address, not just city and state.

Staff said that the background search companies have indicated that they would like to
access birth dates and street addresses in order to cross-check information found during
background searches. A member said that people doing background searches on someone
with a common name need additional personal details to confirm whether the information
they find actually relates to the person they are checking.

A member asked whether using "street address" would create a question of whether it was
the home or business address.

By unanimous consent, the motion was amended to retain "home" and insert "street"

-4-

afterward on page 33, line 158.

A member asked whether the suggested change would resolve the issue of whether a juror's
address was public. A member said the text of Rule 41 seemed to suggest that access to
juror addresses in criminal cases could be restricted. A member replied that the Supreme
Court had decided that juror addresses were public and that a juror wishing to keep an
address private would need to make a motion to the court.

The Chair said the motion on the floor would make Rule 41 consistent with Rule 3.4 on the
issue of addresses in criminal cases.

The motion CARRIED.

The Chair said that other modifications were needed to make Rule 41 consistent with Rule
3.4.

Judge Kleven MOVED to redraft the material at page 33, line 156-58 to make it consistent
with Rule 3.4. Judge Schmalenberger seconded.

Staff was instructed to redraft the paragraph for the Committee to review and consider
during the Friday session.

Staff reviewed the Committee's actions on Rule 5 at the September 2008 meeting. Staff
explained that Mr. Ladd Erickson had now provided draft amendments to Rule 5 for the
Committee's consideration.

Ms. Ottmar MOVED to approve the amendments to Rule 5. Judge McLees seconded.

A member said that the proposal did not solve the problems with uniform citations. The
member said that if a uniform citation is going to be issued with an order to appear, and the
defendant is not jailed, law enforcement should be able to go to the state's attorneys' office
and ask for a summons and complaint. The member said that the proposal created a risk of
abuse because it could allow uniform citations to be used to arrest and jail a person without
a showing of probable cause. The member said that use of uniform traffic citations is being
abused now and the courts should not further this abuse by adopting the proposal.

A member said that currently, some defendants are brought into court on uniform

-5-

citations without any involvement by the state's attorney. The member said this is a problem
because it puts courts into the position of having to resolve cases without adequate
background information. The member said an out-of-state defendant had recently appeared
in court on a uniform citation for first offense DUI. The defendant pled guilty and was given
a first offender sentence. It turned out that it was actually the defendant's third offense and
that the defendant should have spent 60 days in jail. The fact that it was the defendant's
third offense only came to light because the defendant was shortly afterward involved in a
DUI fatality and the media demanded answers from the court on why the defendant was not
in jail. The member said this would not have happened had the state's attorney been
involved in the process of charging the defendant. The defendant instead came before the
court on a citation issued by law enforcement without higher review.

A member said that abuses of uniform citations happen because state's attorneys are not
made aware the citations have been issued.

The Committee discussed the status of the legislation underlying the proposal. The
Committee concluded that it had been introduced but no action had been taken to date.

A member asked why state's attorneys were supporting increasing use of uniform citations.
A member replied that uniform citations made things easier for state's attorneys. A member
said that by allowing the use of uniform citations to increase, state's attorneys were giving
up control of the prosecution process.

A member said that the Committee should wait and see how the legislation turns out before
taking any action on making changes to Rule 5. The member was opposed to the proposal
in its current form. The member said that offenses as serious as felony drug possession have
been charged using uniform traffic citations without involvement by the state's attorney.
The member said this was improper and the court should not legitimize it by amending the
rule.

A member said there are fine distinctions that often need to be made when evaluating
whether a set of facts fulfills the elements of an offense. The member said it takes a legally
trained person to conduct this evaluation. The member said this responsibility should not
be delegated to law enforcement.

A member said that the most common way uniform traffic citations were misused was in
charging misdemeanor drug offenses and minor alcohol possession offenses. The member
said the abuse of uniform citations was not a large problem currently, but that the rule
proposal was too broad and potentially could encourage abuse if adopted.

-6-

A member said that some police departments had developed a habit of doing all charging
by using uniform citations. The member said the only way to change such habits is for
courts to throw out charges that are brought improperly by uniform citation.

Judge Nelson MOVED to table the proposal until after the legislature acts on the proposed
statutory changes. Judge Kleven seconded.

A member said the proposal should be tabled because the Committee will need to revisit
the issue after the proposed statutory changes are passed. A member replied that even if the
form and scope of the uniform citation statute is amended, there is no requirement that the
courts change their procedure in response.

A member said that the Committee should defeat the motion to amend rather than table the
proposal. The member said the Committee should not endorse the proposed changes by
keeping them under consideration.

Motion to table FAILED.

The motion to approve the proposed amendments to N.D.R.Crim.P. 5 FAILED.

A member asked whether the change was intended to allow other charging documents in
addition to the complaint. A member said that some counties already only use the
information and do not start out with a complaint. A member said some counties that have
gone to a single charging document call it the "complaint." A member said that other
counties still use the traditional system of filing a complaint and then an information.

A member said the most obvious difference between a complaint and an information is that
the information requires the endorsement of the witnesses.

A member asked what the status of the uniform citation would be if the proposed changes
were adopted. The members said courts have always allowed the use of uniform citations
as the initial charging document. Staff said that the proposal would add "citation" to Rule
7. The member said that the correct name of the uniform citation was "uniform traffic
complaint and summons."

Staff said that the Association of Counties had also proposed a change to N.D.C.C. §
29-04-05, which would add the word "citation" to the statute on commencement of actions.

A member said that the proposed statutory changes seemed intended to bring the statutes
in line with developing practice. The member said that in the county court days, a complaint
would be prepared, the preliminary hearing would be conducted in county court, and then
an information was prepared when the case moved on to district court. The member said that
because cases started out in district court now, there is no need for two charging documents.

A member said that the Committee should wait to see whether the legislature approves the
proposed statutory changes before making changes to the rules. A member replied that the
rule language at present was not consistent with current practice because cases were being
brought in district court by complaint, something the rules do not specifically allow.

A member said that the proposed amendment to the statute to add the word "citation" was
ill-advised because "citation" is not used elsewhere in the code but is instead a colloquialism
used in the courts. The member said that if the rules are amended, the correct term "uniform
complaint and summons" should be used instead of "citation."

-8-

The motion to approve the proposed amendments to N.D.R.Crim.P. 3 CARRIED on a 7-5
vote. Because the motion to approve the rule proposal was not supported by two-thirds of
the Committee members present, it will be brought back for further consideration at the next
meeting.

A member said that the proposal would conform the rule with existing practice and
formally allow prosecutions to be commenced by information rather than by a complaint
followed by an information.

A member said that the Committee should take advantage of the opportunity and clean up
the rules to eliminate obsolete charging practices. The member said there could be only one
document and the rules could define what it needs to contain.

A member said using the term "complaint" for the proposed single charging document
would make sense. A member said that complaints, as used currently, do not require
witnesses to be listed. The member said that the witnesses will have to be put on the
charging document at some point, whether it is a complaint or information.

The motion to approve the proposed amendments to N.D.R.Crim.P. 5 FAILED.

A member said the title of the rule would need to be changed to add "complaint" to the title.
A member said the title should reflect whatever charging document the Committee decides
to retain as the single charging document. A member said using "complaint" might work
best because this is the term used in the "uniform complaint and summons."

A member suggested that "complaint" be used throughout the rules and that the document
called the "information" be eliminated.

Judge Kleven moved to change "information" to "complaint" throughout Rule 7 and to
eliminate the proposed use of the term "citation." Judge Schmalenberger seconded.

A member asked whether the current requirements for items included in an information
would become requirements for a complaint under the proposed amendment. The consensus
was that everything now part of an information would need to be included in

-9-

the complaint if the proposed amendment were approved.

A member said that this would make charging a misdemeanor more complex because more
material would need to be included in the complaint. A member said that witnesses would
need to be endorsed on the complaint.

The Chair asked whether there was a need to distinguish between a "complaint" and a
"uniform summons and complaint." A member answered that currently a uniform summons
and complaint could only be used for traffic or game and fish offenses. The Chair reminded
the Committee that the legislature was considering expanding the scope of the uniform
summons and complaint.

A member pointed out that a Rule 3 complaint requires presentation before a magistrate
while a uniform summons and complaint does not.

A member said it would be a good idea to put the proposed changes to Rule 7 on hold until
the legislature acts on revising the uniform summons and complaint.

The motion FAILED.

Judge Nelson MOVED to postpone consideration of the Rule 7 proposal and to have staff
prepare a revised proposal that would be consistent with any legislative changes and would
eliminate the "information" in favor of the "complaint." Mr. Plambeck seconded.

A member asked whether there were any reasons why it may be necessary to retain the
information. A member suggested that staff research this issue while preparing the revised
proposal. A member said the goal should be to simplify the system so that a single document
can be used to charge criminal matters.

The Chair said that the Supreme Court had split in State v. Ferrie on when a court
could
dismiss a case in which no information or complaint had been filed. The Chair said that the
split among the Court's members extended to a difference of opinion on when a criminal
case commences.

A member said the underlying case was an example of what happens when a person is
arrested under a uniform summons and complaint and there is no follow up by the police or
the state's attorney. The criminal file was empty when the defendants made their initial
appearance­it did not even include a copy of the uniform summons and
complaint­so the
trial court judge dismissed the criminal action.

A member said the proposed change would not solve the problem raised by the case
because it did not specifically address what happens when there is a delay in a criminal
action caused by the non-filing of a uniform complaint and summons. A member said that
a uniform complaint and summons is still a complaint and the proposal covered complaints.

Staff explained that the proposed statutory changes that the Committee had reviewed
previously would use the term "prosecution" to describe a criminal action, case or
proceeding and that the Committee might want to use this terminology in the rule.

A member said that the term used in N.D.R.Crim.P. 1 is "criminal proceeding" and that it
would be appropriate to use consistent terminology in any amendments to Rule 48. A
member said that it would be wise not to introduce any foreign terminology to the criminal
rules.

Mr. Plambeck MOVED to amend the proposal at page 125, line 9 to replace "action" with
"proceeding." Ms. Ottmar seconded. Motion CARRIED.

A member asked whether a uniform complaint and summons was actually the equivalent
of a complaint. A member said that it seemed that at least some of the justices in the State
v. Ferrie had doubts about whether a "uniform complaint and summons" qualified as a
complaint.

A member said that Rule 3 defines what a complaint is and that all those elements seemed
to be included in the uniform complaint and summons. A member said that N.D.C.C. §
29-05-31 indicated that a separate complaint was not required when a uniform complaint and
summons had been issued.

A member said that perhaps new language could be added to the rule to make it clear that
the uniform complaint and summons was included under Rule 48.

-11-

Mr. Hoy MOVED to amend the proposal at page 125, line 12 by adding a new paragraph
(b)(3): "filing a uniform complaint and summons as permitted by law; or" and then
renumber. Judge Schmalenberger seconded. Motion CARRIED.

The motion to approve the proposed amendments to N.D.R.Crim.P. 48 and to send the rule
to the Supreme Court as part of the Annual Rules Package CARRIED.

Staff explained that Justice Maring had requested the Committee discuss Rule 32's guilty
plea withdrawal provision to see if it could be made clearer and to address whether it should
be made part of Rule 11 consistent with the federal rule.

Judge McLees MOVED to approve the proposed amendments to Rules 11 and 32. Judge
Reich seconded.

A member said that adopting the language and structure of the proposal would make the
guilty plea withdrawal procedure much clearer. The member said the current standards, such
as "manifest injustice," were not easy to understand.

The Chair pointed out that the proposal would constitute a substantial change because it
would eliminate all motions to withdraw guilty pleas after sentencing. The Chair said that
the only way to challenge a guilty plea after sentencing would be by direct appeal or post-
conviction relief. The Chair said the proposal would require all motions to withdraw guilty
pleas to be made before sentencing.

A member said the current terminology was nebulous and hard to define.

A member noted that under the proposal, the court would be able to deny a plea withdrawal
if the prosecution substantially relied on the defendant's plea. The member asked when this
situation might occur. A member explained that a witness issue could cause substantial
prejudice­if the witnesses were released and no longer available because the prosecution
relied on the guilty plea.

A member asked whether the substantial prejudice provision shifted the burden to the
prosecution. A member replied that such a shift would occur only if the defendant had
already shown a fair and just reason for the withdrawal.

Judge Nelson MOVED to delete the word "requesting" on page 146, line 75. Judge

-12-

Kleven seconded.

A member said the "fair and just reason" should support the plea withdrawal, not the
request to withdraw.

Motion CARRIED.

A member said that the part of the proposal that would make a guilty plea final after
sentencing would change North Dakota's substantive law. The member said that it was not
appropriate to foreclose a motion to withdraw a guilty plea after sentencing. The member
said that such motions are rarely made but the rules should not close the door on the
possibility. The member said direct appeal and post-conviction relief are not viable
alternatives because there is such a short time frame for direct appeal and because issues that
could have been raised on direct appeal will not be considered on post-conviction relief.

A member said that the withdrawal procedure should be moved out of Rule 32 and into
Rule 11 as in the federal rules. The member said that the state, however, should not adopt
the federal plea withdrawal system.

A member asked under what circumstances a court would allow withdrawal of a guilty plea
after sentencing. A member said that a person could learn years after sentencing that a guilty
plea would affect professional licensing, for example. If the person had completed all
conditions of the sentence, withdrawal of the guilty plea and dismissal of the charge would
be a possibility under the current rule.

A member said that, because many court records are now online, there is a growing interest
among people who may have once pled guilty to a crime to somehow have the plea
eradicated. A member said that many companies will not hire anyone with a criminal record,
no matter how minor or long ago the offense may have been committed. A member said that
it serves justice to have a mechanism to vacate long ago judgments.

A member said there may be other ways to accomplish the erasure of old offenses without
allowing the post-sentence withdrawal of guilty pleas. A member said judges have inherent
discretion to not accept guilty pleas and to dismiss charges. A member replied that it is
sometimes difficult to see what the repercussions might be from accepting a guilty plea in
a given case.

The Chair pointed out that Minnesota has not followed the federal rule and still allows
withdrawal of guilty pleas after sentencing to correct manifest injustice.

-13-

A member said manifest injustice was not a clear concept and that the terminology in the
proposal was easier to understand. The member said that the proposal also gave greater
respect to the finality of judgments.

A member said it would be beneficial to have a mechanism that allows courts to allow the
withdrawal of a guilty plea after sentencing on the rare occasions when this will serve the
interests of justice. The member said that the collateral consequences of a guilty plea are not
apparent until years after the plea is entered and the sentence is served.

A member said that another difference between the proposed change and the current system
is that when "manifest injustice" is shown, the court must allow withdrawal of the guilty plea
while under the proposal any withdrawal is subject to the court's discretion.

A member said that N.D.C.C. § 12.1-32-07.1 allows courts to set aside guilty pleas
when defendants have completed all the conditions of probation. The member said the
statute provides a mechanism outside of the rules for defendants seeking to withdraw a guilty
plea.

A member said that the manifest injustice standard could be made part of the proposal as
a safety valve.

Judge Geiger MOVED to table the proposal so that staff could redraft and add a post
sentence guilty plea withdrawal mechanism that would use the manifest injustice standard.
Judge Nelson seconded.

Staff presented language that could possibly be used to implement a post sentence plea
withdrawal mechanism within the context of the rule. A member suggested that the
paragraphs of the guilty plea withdrawal section be renumbered so that staff's proposed
revisions would become paragraph (2).

By unanimous consent, the motion was amended to include staff's proposed language and
to renumber the paragraphs. Also by unanimous consent, staff was requested to prepare a
new draft of the proposal for the Committee to review at Friday's session prior to voting on
the motion.

A member asked whether it was error to not follow the statutory procedure if the defendant
waived the right to have the jury present. The Chair replied that rights, including
constitutional rights, may be waived but when this happens it needs to be on the record. The
Chair said that in State v. Kruckenberg, the Supreme Court opinion that had led to
Judge
Hagerty's request, many things had been done off the record. The Chair pointed out that a
long line of Supreme Court cases require all communications with the jury to be made in
open court and in the presence of the defendant.

Staff said that N.D.C.C. § 29-22-05 dealt with two issues: what procedure is to be
used
in answering a question by the jury and how does the court respond to a request for the
reading back of testimony. Staff said the proposal would supersede the statute and allow the
court to use its discretion to deal with both these issues.

A member said that problems with jury questions are most likely to occur when the jury
submits a question by note to the judge and the judge answers the question without
consulting the defendant or counsel. The member said that if counsel and the defendant are
present and everyone is involved with determining an answer to the jury question through
an on-the-record discussion, there are few problems. The member said that most courts
respond to jury questions in this way rather than by following the statutory procedure.

A member said the statutory requirements for providing testimony to the jury are more
problematic than the jury question requirements. The member said that some courts do
audio recordings of testimony and do not transcribe the recordings until after the trial. The
member said that one judge who uses this method has interpreted the statute's requirement
that a transcript be read to prohibit playing the audio recording for the jury. Instead,
transcription of the requested testimony would be required. The member said the statute is
outdated and courts should have discretion to allow juries to listen to audio recordings of
testimony.

A member said that the language of the statute does not require that jury questions be
answered in open court unless the jury requests to return to open court. The member said
that in almost all cases, the jury will write out a question and not ask to be brought back to
open court. A member responded that the Supreme Court has interpreted the statute to
require the jury to be brought back to open court whenever they ask a question.

A member asked whether this issue would be best addressed by the legislature. The

-15-

member said the statute seemed very clear. Staff said that how to respond to a jury request
seemed to be a matter of procedure, so the Supreme Court could choose to supersede the
statute by implementing a rule of procedure on the subject.

A member said that the language of the statute was not sufficient to provide guidance on
issues raised by real time court reporting. The member said that jurors who see that real time
court reporting is being done are more likely to ask for witness testimony transcripts to read
in the jury room. The member said the statute seemed to place some restrictions on how
much testimony could be provided to jurors and how the testimony could be provided. The
member said the court should have discretion to decide how to present real time transcripts
to the jury.

A member said the statute dated back to the 1880's when all testimony was recorded on
paper and reading it back was the primary method available to translate the reporter's
shorthand. The member said that allowing jurors to listen to an audio recording of testimony
should be an option when appropriate. A member said that sometimes, it is also appropriate
for the court to advise jurors that they must rely on their memory.

A member said the most important factor is that the defendant must be present when jury
questions are answered and responses to testimony requests are made. The Chair said case
law shows that not all judges make certain that the defendant is present at these key
moments. A member said that if counsel and defendant are present and consulted, allowing
the judge to use discretion to decide how to respond to a jury request is the best approach.

A member said that when the court gives jury instructions, they are recited in front of the
jury so all the members can hear it. The member said if judges are allowed to answer jury
questions about instructions by note, the jury leader could paraphrase the answer and may
get it a bit wrong. The member said that following the statutory procedure assures that all
the jury members hear answers to questions about the instructions in the same manner that
the instructions were read in the first place.

A member said the problem in Kruckenberg was two parts of the statute. The
statutory
requirement that the jury be brought back into the courtroom when they have a question is
rarely followed, generally by agreement of the parties. The statutory requirement that the
transcript be read is outdated. The member said that, in theory, it would be best to bring the
jury back in the courtroom to answer questions. The member said that using other methods
by agreement also worked. The member said the transcript reading requirement was a
problem, especially if the testimony has been audio recorded and the recording can be
played.

-16-

A member said the proposal goes too far to correct problems related to the statute. If a
defendant does not want to cooperate with the trial and is absent from juror question
discussions, will that bring the whole process to a halt? The member said some steps should
be taken to account for this possibility. The member said the proposal should also allow for
stipulations on how juror question issues are going to be handled. Finally, the member said
the judge's discretion to decide how to respond to a juror question or request should not be
unfettered­counsel should be able to raise objections.

A member said that the discussion showed why the proposed change was inappropriate.
The member said that while constitutional issues were implicated in the issue, the defendant
can waive a constitutional right and the court's duty if this happens is to make certain the
defendant understands the consequences. The key is that the waiver and confirmation appear
on the record. The member said the statute's open court question and answer requirement
too can be waived if there is knowing and recorded waiver. The member said the statute's
transcript requirement likewise should not be taken too literally because a verbatim audio
recording is no less accurate than a transcript. The member said there was no reason to
supersede the statute.

A member said that Judge Hagerty was correct that handling of jury questions and requests
was procedural and a proper subject for a rule. The member said constitutional rights can
be protected by rule as well as by statute. The member said that granting the court complete
discretion, as proposed in the draft, is not appropriate but that it would be appropriate to take
the substance of the statute and transfer it to a rule. The member said the Committee could
then work to make sure the procedure was up to date and contained constitutional
safeguards.

A member said that the presence of the defendant is essential. The member said if the
defendant is absent, it is a constitutional violation. The member said a lawyer's presence
cannot substitute because at times there will be disagreements. The member said if it was
moved out of the statute a rule could be written to guarantee constitutional rights and allow
alternative ways to present transcript. The member said it would be a good idea to move
substance out of the statute and into this rule because this rule focuses on the defendant's
presence.

The Chair reminded the Committee of the long line of cases that require any
communication with the jury to be in open court with the defendant present. The Chair said
the issue of whether the jury had a request to return to open court had not been raised in
these cases.

Staff said that if the statutes were superseded by bringing its substance into the rule,

-17-

the Committee could adjust the language to deal with current practice on answering jury
questions and responding to requests to review testimony.

The Chair said that the key lesson of the case law was that if the jury was not going to be
brought back into open court, the record must reflect all other steps that were taken to answer
the jury question and that the defendant was present throughout the process.

A member said the open court requirement also served the public, which has a right to
know what is going on in a criminal trial. A member said the public interest could be served
by discussing written juror questions in the courtroom rather than in chambers. A member
said the jury could be brought in after the discussion and the answer could be read to them.

Mr. Plambeck MOVED to have staff redraft the proposal to bring the substance of the
statute into the rule with adjustments as suggested in the Committee's discussion. Judge
McLees seconded. Motion CARRIED. The redrafted proposal will be discussed at the
Committee's next meeting.

Staff explained that attorney Mr. Michael Hoffman had requested that the Committee
discuss whether the 24/7 program of monitored release from custody was in compliance with
Rule 46.

The Chair said that the Attorney General was backing the program and it was being tested
as a pilot project in the South Central Judicial District. A member said that a bill before the
legislature would make imposition of 24/7 monitoring mandatory on a second offense DUI
as a bail condition.

A member said that the program was beneficial because it forces sobriety. The member
said that imposing this condition under Rule 46 was appropriate because the court has
discretion under the rule to determine conditions of bail. The member said that the program
requires the monitored person to take a breath test twice a day. The member said that the
theory behind the program is that if a person knows tests will be conducted every 12 hours,
they will not drink.

The member said officials from South Dakota, which uses the program, say it is very
effective. The member said if a person shows up late, they are held for a bond review. If
a person tests positive, they are held for a bond review.

-18-

A member said a major concern of law enforcement was that the program would be an
unfunded mandate.

A member said the problem with Mr. Hoffman's request was that he was asking the
Committee for an advisory opinion on whether or not the program was proper. A member
said that the 24/7 program was a lot like the methamphetamine testing imposed by statute
several years ago. The member observed that this testing continues.

A member said that courts often require drug or alcohol testing as a bail condition. The
member said such testing is appropriate under Rule 46 as long as there is case-by-case
consideration.

By unanimous consent, the Committee instructed staff to inform Mr. Hoffman that the
Committee had discussed the issue and decided to take no action.

Staff explained that the district court administrative unit staff had proposed an amendment
to Rule 21 to provide for administrative oversight of case transfers.

A member said that just because a judge may take an ill-advised step in transferring a case
does not mean the rules of procedure need to be amended to guard against the situation
happening again. The member said that judges generally exercise courtesy and make
advance inquiries before transferring cases.

By unanimous consent, the Committee instructed staff to inform the administrative unit
staff that the proposed amendment was not appropriate for inclusion in the procedural rules.

The meeting recessed at approximately 4:30 p.m. on January 29, 2009.

January 30, 2009 - Friday

The meeting was called to order at approximately 9:00 a.m. by Justice Mary
Muehlen
Maring, Chair.

The Committee returned to consideration of Rule 41. Staff distributed proposed
amendments prepared at the Committee's direction.

The Committee considered the following proposed amendment to Section 5 of Rule 41:

(8) personal information:

­ except for the last four digits, social security numbers, taxpayer
identification numbers,
and financial account numbers,

­ except for the year, birth dates,

­ except for the initials, the name of an individual known to be a minor,
any financial
account numbers, and,

­ in criminal cases, the home street address of an individual;

The motion to amend Rule 41 CARRIED.

A member said that the Clerk of Court's Manual would be revised in April and that it
would be appropriate to get any proposed changes to Rule 41 to the Supreme Court before
that time so that the changes could be included in the manual.

Ms. Ottmar MOVED to adopt the amendments to Rule 41 and to send the proposal to the
Supreme Court immediately as an emergency measure. Judge Kleven seconded. The
motion CARRIED.

The Committee returned to consideration of Rules 11 and 32. Staff distributed proposed
amendments to Rule 11 prepared at the Committee's direction.

The Committee considered the following proposed amendment to Rule 11:

(d) Withdrawing a Guilty Plea.

(1) In general. A defendant may withdraw a plea of guilty:

(A) before the court accepts the plea, for any reason or no reason; or

(B) after the court accepts the plea, but before it imposes sentence if:

(i) the court rejects a plea agreement under Rule 11(c)(5); or

(ii) the defendant can show a fair and just reason for the withdrawal.

(2) Finality of a Guilty Plea. Unless the defendant proves that withdrawal is necessary
to
correct a manifest injustice, the defendant may not withdraw a plea of guilty after the court

-20-

has imposed sentence.

(3) Prosecution Reliance on Plea. If the prosecution has been substantially prejudiced
by
reliance on the defendant's plea, the court may deny a plea withdrawal request.

The Chair reminded the Committee that the proposed new language would become part of
Rule 11 and move out of Rule 32, consistent with the federal change. The Chair said that
the proposed language was not a wholesale adoption of the federal language but language
that had been adjusted to reflect the concerns of the Committee's members.

A member asked whether the prejudice to the prosecution could bar withdrawal of a plea
at any point, even before the court accepts a plea. The consensus was that prejudice would
be a bar.

The motion to amend the proposal CARRIED.

The motion to approve the proposed amendments to N.D.R.Crim.P. 11 and 32 and to send
the rules to the Supreme Court as part of the Annual Rules Package CARRIED.

Staff explained that Fed.R.Civ.P. 30 had been amended and that changes consistent with
the federal amendments were now proposed for N.D.R.Civ.P. 30. Staff added that if the
Committee accepted the amendments to Rule 30, repeal of Rule 30.1 might be appropriate.

A member asked about the proposed language that, in a remote deposition, the location
where the deposition "takes place" is designated as the place where the deponent is located.
The member said that the proposal should be clarified to indicate where the officer should
be located.

The Chair said that the Supreme Court had recently addressed a remote testimony situation
and one issue in such cases is the oath. The Chair said that whether the person giving the
oath has to be present with the person testifying or whether the oath can be given remotely
is a question open to debate.

-21-

A member said that the amount of testimony being taken remotely is increasing. The
member said that the oath is usually given over the telephone, but that a careful record is
made of where the person is and who is with them. The member said that counsel are also
polled on the record to ensure they are satisfied that the person testifying is the right person
and is under oath.

A member said that the rule should require that notice be given of where the officer will be
located so that the parties can decide where they should attend the deposition or whether they
should attend remotely. The member said this information could be included in the
deposition notice.

A member said that if a remote deposition, by rule, "takes place" where the deponent is
located, an attorney who takes a deposition from a remote location could be considered to
be practicing law in that location. The member said it would be better to have all remote
depositions defined as taking place in North Dakota, regardless of where the deponent is
located.

A member said the same question could be raised about depositions where an attorney
travels to take a deposition to be used in a North Dakota case: is it "practicing law" to go
outside North Dakota to take a deposition? A member replied that some jurisdictions had
reached this conclusion, in particular Florida.

A member said that it is acceptable for the federal rule to define a deposition as taking
place
where the deponent is located, given that anywhere in the country is within federal
jurisdiction. The member said that different issues arise in state cases because each state is
its own jurisdiction.

A member said defining where a deposition takes place in the rule lets parties know which
court to turn to for assistance if problems arise with a deposition. A member said that other
discovery rules state that a party can seek relief in the court where the action is pending or
the court where the deposition takes place. A member said this can be a problem because
counsel can try to pick and choose their forum.

Mr. Reierson MOVED to add language at page 253, line 55: "The officer may be present
where the parties stipulate or the court orders." Judge Nelson seconded.

Mr. Plambeck MOVED to amend the motion to make the proposed language a separate
sentence rather than a clause in the existing sentence. Mr. Reierson seconded. Motion to
amend CARRIED.

-22-

A member asked whether the language at page 253, lines 50-52 was necessary. The
member said that for practical purposes, it would only apply if a deposition takes place out
of state. A member said that rather than considering a remote deposition to take place where
the deponent is located, it would make more sense to consider it taking place where the
action is venued.

Mr. McGee MOVED to amend language at page 253, lines 51-52, to replace "where the
deponent answers the questions" to "where the action is venued." Judge Geiger seconded.

A member said changing to venue would be good because that would make it clear which
judge to go to for assistance with disputes. A member said the change would recognize that
state courts are different than federal courts.

A member said the change could create problems when the deponent in a North Dakota
case is located in a different state. The member said that having the venue court deal with
any disputes would be fine if the deponent was associated with a party. The member said
if the witness was a non-party, the North Dakota court would not be able to enforce
cooperation.

A member said that letters rogatory were previously used when examining a non-party
witness out-of-state. The member said a judge in the state where the deposition takes place
would become involved in the matter by issuing a subpoena and would then be able to deal
with disputes. The member said that the procedure is currently used little.

Staff said that Rule 37 requires disputes involving parties to be settled in the court where
the action is pending while non-party disputes must be resolved in a court where the
deposition is taken.

A member said that Rule 37 allows parties to obtain assistance in discovery from the
appropriate court and does not seem to conflict with the proposed amendment to Rule 30.
The member said that the proposed amendment, however, may create an ambiguity.

The Chair asked if the North Dakota court where the action was venued issued an order to
an out-of-state deponent, how would the order be enforced?

A member asked whether remote depositions typically involve cooperative witnesses. A
member said that when there is an uncooperative out-of-state witness, having a subpoena
issued after letters rogatory were sent would be the best approach. A member asked whether
the issues being discussed were really likely to arise if most remote depositions involve

-23-

cooperative witnesses.

A member asked whether Rule 37 could be amended to be consistent with the proposed
amendment to Rule 30. A member replied that the proposed amendment would create an
inconsistency unless Rule 37 was also amended.

The Chair suggested that multi-jurisdictional practice was opening up and that problems
with out-of-state courts might be reduced in the future. A member said that the problem of
being accused of unlawful practice of law was a rare one but something that attorneys have
to consider.

A member suggested that the cross-references at page 253, line 51, be removed. The
member said this would make it clear that the proposed amendment indicating that a remote
deposition takes place where the action is venued applies only to remote depositions
conducted under this rule.

A member said that even if this modification was made, there might still be a conflict
between this rule and Rule 37 and the possibility of forum shopping for relief would still
exist. A member replied that Rule 37's guidance would prevail because it specifically dealt
with resolution of discovery disputes.

The motion FAILED.

Ms. Ottmar MOVED to delete the sentence beginning at page 253, line 50 and ending on
line 52. Mr. Dunn seconded.

A member said that Rule 37 covered discovery enforcement and resolution of discovery
disputes and there appeared to be no reason why the language was needed in this rule.

The motion CARRIED.

The Chair asked the Committee to look at page 258 beginning at line 150. The Chair said
the deposition time limit in the proposal was new. Staff said that the language on sanctions
was also new.

Mr. Plambeck MOVED to delete the proposed new text on deposition sanctions at page
258, lines 155-57. Mr. Reierson seconded.

A member stated that sanctions are covered in Rule 37. The member said that it was

-24-

not wise to move the sanctions provisions out of Rule 37 and spread them throughout the
rules.

A member said that if the motion carried and the sanctions provision was removed, the term
"sanction" would need to be removed from the subdivision title. By unanimous consent, the
motion was amended to also remove "sanction" from the title.

A member said the sanction language was appropriate because it emphasized the
importance of attorneys and parties abiding by the spirit of the rule. The member said the
sanctions language was in the rule for a reason and it was proper to retain it.

A member said that Rule 37 did not seem to have language echoing the language in the
Rule 30 sanction provision. The member said if the language on impeding, delaying or
frustrating a deposition might need to be added to Rule 37 if it is deleted from this rule.

The motion FAILED.

Mr. Hoy MOVED to delete the proposed new text on deposition time limits at page 258,
lines 151-54, and the reference to duration in the subdivision title. Mr. Dunn seconded.

A member said that it is rare for a deposition to go longer than seven hours, the time limit
proposed. The member said that there may be good reason for a deposition to go longer and
by putting a time limit in the rule, it may establish an artificial "finish line" for a deponent
who may want to slow the progress of a deposition so as to escape the examination once the
time limit is reached. The member said that it is not rare for deponents to "dance" a long
time before they will finally answer deposition questions.

A member said that the purpose of the sanctions and duration amendments to the federal
rules was to attempt to ensure professional courtesy in conducting depositions and to reduce
costs of depositions by preventing them from continuing for an excess amount of time. The
member said time limits were not a bad idea because additional time could be requested and
because the time limit could force the parties to focus on completing the deposition in one
day.

A member said that the duration limit was a good idea in theory but that it also could lead
to disputes about whether breaks and lunch count toward the duration limit. The member
said setting an artificial duration limit can create issues that would otherwise not arise.

The motion CARRIED.

-25-

Staff said the next major proposed revision to the rule began at page 259, line 175. Staff
said the proposed revision would change the review procedure for depositions.

By unanimous consent, a typographical error was corrected on page 259, line 179.

A member asked what would happen if the deponent did not send back the correction page.
Staff said the proposed new language would foreclose changes if the correction sheet was
not sent back within 30 days.

By unanimous consent, the word "made" was inserted at page 259, line 179.

A member said the current rule specifically clarifies that if the deponent does not sign the
correction sheet within 30 days, the deposition is deemed to contain the deponent's
testimony. The member said such clarifying language should be included in this rule so that
there are no grounds for argument.

Mr. Hoy MOVED to amend to add language to page 260 after line 194 that would include
the substance of the current language included in the materials beginning at page 259, line
186 and ending at page 260, line 191. Ms. Ottmar seconded. The motion CARRIED.

A member pointed out language at page 251, line 6, and page 252, line 34, referring to
service of a subpoena on a deponent. The member said that a subpoena would be necessary
for a party and that the rule's language should specify that subpoenas need only be served
on non-party deponents.

Mr. Plambeck MOVED to amend page 251, line 6, and page 252, line 34, to add the term
"non-party" prior to "deponent." Mr. Dunn seconded.

A member said that the proposed additional language would add clarity to the rule about
when a subpoena is necessary. A member said there had been some confusion involving
subpoenas to parties in discovery matters. The member said that parties are required to
comply with discovery requests without the need for subpoenas.

Motion CARRIED.

A member asked why the special notice provision at page 254 line 79 referred to a
"plaintiff" rather than a "party." The member said a defendant should be given the same
special notice opportunity. A member replied that language beginning at page 251, line 9
does not require the plaintiff to seek leave for taking a deposition within 30 days of

-26-

commencement of the action if the defendant has already served a deposition notice. The
member said that the special notice language simply sets out the procedure a plaintiff must
follow if the defendant has opened the door to discovery by serving a deposition notice
within 30 days of commencement of the action.

A member said that the word "deponent" had been generally used throughout the rule, but
that beginning on page 259, line 175, the word "witness" was used. The member said that
there should be consistency throughout the rule.

Mr. Plambeck MOVED to substitute the word "deponent" for the word "witness"
throughout the rule. Judge Geiger seconded. Motion CARRIED.

The motion to approve the proposed amendments to N.D.R.Civ.P. 30 and to send the rule
to the Supreme Court as part of the Civil Rules Package CARRIED.

A member said the list of organizations in the proposal sounded like an exclusive list, but
that there were many organizations recognized under North Dakota law, like limited liability
companies, that were not included. The member said that some terminology should

-27-

be added to encompass these other organizations.

Mr. Plambeck MOVED to amend language at page 281, line 32, to add "or other
organization or entity" after "agency." Judge McLees seconded.

By unanimous consent, the words "or entity" were removed from the motion.

Motion CARRIED.

A member said that new language in the proposal on Notice of Filing had been previously
deleted from the North Dakota rule. The member said the deletion probably occurred when
the rules were changed to stop most filing of discovery materials. The member said the
restoration of this language was not necessary.

Mr. Plambeck MOVED to delete the new language at page 282, lines 58-60, of the
proposal. Judge Reich seconded.

A member said any filing of a deposition would be covered under N.D.R.Civ.P. 5.

Motion CARRIED.

The Chair noted that the word "send" was used at page 282, line 57. The Chair asked what
"send" meant. A member said that the provision cross-referenced N.D.R.Civ.P. 30(f), which
contained a definition of "send."

A member questioned the use of the term "deliver" at page 282, line 52. The member said
it sounded like hand delivery was required. A member said that substituting "serve" for
"deliver" would not be a good idea because formal service should not be required. A
member said that "deliver" had been used in the rule for many years without problems.

The motion to approve the proposed amendments to N.D.R.Civ.P. 31 and to send the rule
to the Supreme Court as part of the Civil Rules Package CARRIED.

Staff pointed out language on page 305, lines 62-63, on repetitive discovery. A member
said the language meant that discovery by one was discovery by all. A member added that
the language required parties to supplement discovery even if they did not serve the
discovery request. A member said that sometimes parties are dismissed and the language
was meant to encompass their responses to discovery.

A member said the language did not address the question of what happens when a party (in
a multiple party case) serves discovery answers only on the party that served the discovery
requests.

Mr. Plambeck MOVED to delete the sentence beginning at page 305, line 62 and
continuing on line 63, and replace it with: "Interrogatories served by one party are
considered to be served by all parties." Mr. Reierson seconded. Motion CARRIED.

Ms. Ottmar MOVED to add "or other organization" after "agency" at page 304, line 26.
Judge Kleven seconded. Motion CARRIED.

The motion to approve the proposed amendments to N.D.R.Civ.P. 33 and to send the rule
to the Supreme Court as part of the Civil Rules Package CARRIED.

By unanimous consent, a typographical error was corrected at page 320, line 16.

A member asked whether the courts are seeing more disputes, especially with independent
medical examinations. The member said there was an issue about whether these
examinations could be recorded or whether witnesses could be allowed to observe them.
The member said that IMEs seemed to be becoming more adversarial.

The member said having female clients who were required to submit to IMEs was a special
concern because there were no female IME doctors in the state. The member said questions
of impropriety can arise in an unsupervised examination of a female client by a male IME
doctor.

A member said that it may not be desirable to do an IME but it is often necessary. The
member said it was difficult to find any doctors in the state who would perform IMEs. The
member said that if a female doctor was required for an IME the client would need to travel
out-of-state.

A member said that having a doctor of the same sex was less important that having

-30-

the events of the IME recorded in an accurate manner. The member said if there are only
two people in the room, conflicts can arise about what went on. A member replied, however,
that if additional people are allowed in the examination, claims of interference with the
examination are possible.

A member said that, under the existing rule and existing practice, the court has discretion
to set the conditions and circumstances of the examination. The member said it would be
best to leave this to the court's discretion rather than putting new requirements into the rules.
A member replied that leaving it to the court's discretion creates inconsistencies because
different judges have different ideas about what conditions are appropriate for a medical
examination: One judge may allow a tape recording of the examination while another may
allow a family member to observe while another may allow a law firm staffer to observe.

A member said that attorneys were more frequently attacking the credibility of IME doctors
in court by asking about the duration of the examination and whether anyone else observed
it. A member said, when the issue of having a recorder or observer is raised, doctors
sometimes claim that the doctor-patient relationship should be confidential. The member
said there is no actual doctor-patient relationship in an IME, but the doctors have a difficult
time accepting this.

A member said that most IMEs are done by agreement rather than a court order under the
rule. The member said the terms of the examination are set by the agreement. The member
said it might be useful to have more examination conditions in the rule so that these can be
made parts of agreements and so that parties do not have to threaten to get the court
involved. The member said, for example, a rule could make it clear who the client could
take along to the IME.

A member said that, under the rule, the judge's order must specify the time, place, manner,
conditions and scope of the examination. The member said that the rule gave the court broad
discretion to set conditions for the examination.

By unanimous consent, the word "who" at page 321, line 37 and line 42, was changed to
"whom."

A member questioned the use of the word "requester" at page 321, line 35.

A member said that the language at page 336, lines 15-16, relating to the appropriate court
for a discovery order involving a non-party, should be changed to give the parties an option
to seek the order in the court where the action is pending.

Mr. Plambeck MOVED to amend page 336, line 15-16, to replace the word "must" in line
15 with "may" and to add language at the end of line 16: "or in the court where the action
is pending." Mr. Dunn seconded.

-32-

A member asked whether the words "if that court has jurisdiction" should be added to the
motion text. A member replied that a court could not issue an order if it did not have
jurisdiction.

Motion CARRIED.

The Chair advised the Committee that the proposal contained changes brought in from the
federal rule that the Committee should take care to examine. The Chair pointed in particular
to the requirement that a person seeking sanctions must have made a good faith attempt to
resolve the matter without court involvement.

A member said that this new provision was a good idea because it would make lawyers
think twice before making a motion for sanctions. The member said it is important not to
waste the court's time and the provision puts the onus on the lawyers to work it out if they
can.

A member said lawyers like to claim in their discovery motions that they tried to work the
matter out before bringing it to the court and, as a practical matter, it is a good idea to try to
negotiate discovery disputes.

The motion to approve the proposed amendments to N.D.R.Civ.P. 37 and to send the rule
to the Supreme Court as part of the Civil Rules Package CARRIED.

A member said the language should be retained because it makes it clear that a party cannot
belatedly ask for a jury trial after minor amendment of the pleadings.

Motion CARRIED.

-33-

The Chair pointed out that the federal rules revision had removed spelled-out numbers and
replaced them with digits. The Chair asked if this practice was in line with the Committee's
desires. Staff said the Committee in the past had generally spelled out single digit numbers
and used digits for multiple digit numbers.

By unanimous consent, the word "testimony" at page 391, line 19, was deleted and replaced
with the word "transmission."

-35-

A member asked if the proposal contained an undefined standard: "for good cause in
compelling circumstances." The member asked whether it should not be either "good cause"
or "compelling circumstances." The member said that proving "compelling circumstances"
would seem to require a more substantial showing than just "good cause."

A member said that the standard for allowing testimony by remote transmission may be too
high considering the use of such testimony was increasing. The member said it may be more
appropriate to allow the court to use its discretion in permitting remote testimony. A
member replied it is important to have some standards to prevent unrestricted remote
testimony, such as when the parties stipulate to such testimony but fail to involve the court
in the matter until the last minute. The member said courts need a standard to guide the use
of discretion.

A member said combining the terms "good cause" and "compelling circumstances" created
too many conditions and could set the bar too high for remote testimony. The member said
that remote testimony is useful in many circumstances, such as when a witness is willing to
testify but not willing to travel. The member said requiring "good cause" provided an
adequate standard.